2019 (2) TMI 681 - AT - Service Tax

Penalty u/s 77 and 78 of FA - irregular availment of CENVAT credit - additional amount of service tax which they have paid - Rule 6(3) of Service Tax Rules, 1994 - Held that - Admittedly, the appellant made a mistake in taking credit of excess service tax paid in CENVAT account instead of taking it under Rule 6(3) of the Service Tax Rules. This mistake was pointed out by the audit specifically directing them to make the changes. They did so and filed revised returns. Under these circumstances, there are no ground whatsoever to impose any penalty upon the appellant. Merely entering the figures under the wrong heading in their returns with no revenue implication whatsoever and no intention to evade payment of taking duty or taking excess credit does not render the appellant liable to penalties as proposed. The entire action by the appellant was a genuine mistake which they corrected on the direction of the audit. Appeal allowed - decided in favor of appellant.

Issues:
1. Incorrect availing of CENVAT credit by the appellant.
2. Show cause notice issued for recovery of irregularly availed credit, interest, and penalties.
3. Appeal against the Order-in-Original confirming the demands and penalties.
4. Argument by the appellant regarding the mistake in availing credit under CCR, 2004 instead of Rule 6(3) of the Service Tax Rules.
5. Departmental representative's stance and lower authority's findings.
6. Tribunal's analysis of the case and decision on penalties and demands.

Analysis:

1. The appellant mistakenly availed CENVAT credit on certain credit notes, which was pointed out during an audit. The audit revealed that the appellant had taken credit on credit notes issued for various reasons, including excess charges and service disallowances, contrary to the provisions of Rule 6(3) of the Service Tax Rules. The appellant corrected this error by filing revised returns deducting the amount of credit taken and utilized from the CENVAT account and adding it to their Rule 6(3) account.

2. Subsequently, a show cause notice was issued by the authorities seeking to recover the irregularly availed CENVAT credit under Rule 14 of the CCR, 2004, along with interest and penalties under relevant provisions. The Original Authority confirmed the demands and penalties, leading the appellant to file an appeal before the First Appellate Authority.

3. The appellant argued that their mistake was in availing credit under the wrong rule, CCR, 2004, instead of Rule 6(3) of the Service Tax Rules. They contended that the amounts were adjusted as per audit directions before the show cause notice was issued, thus disputing the need for penalties or recovery of credit.

4. The Tribunal considered both sides' arguments and found that the appellant's mistake was genuine and rectified promptly upon audit directions. The Tribunal noted that the credit notes were valid documents for taking credit under Rule 6(3) of the Service Tax Rules, even though they were not appropriate for CENVAT credit. The Tribunal concluded that there was no intention to evade payment or take excess credit, and the appellant's actions were based on a genuine error corrected in good faith.

5. Consequently, the Tribunal allowed the appeal, setting aside the impugned order and ruling in favor of the appellant. The Tribunal emphasized that the appellant's actions did not warrant penalties, demand, or interest, given the rectification of the mistake and the absence of any revenue implications or intentional wrongdoing.

This detailed analysis of the judgment highlights the issues, arguments presented, authorities' decisions, and the Tribunal's final ruling, providing a comprehensive overview of the legal proceedings and outcome.

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